2 Chapter 1: Criminal Procedures In This Chapter: In this chapter, you will find the clerical procedures for the following: CRIMINAL FELONY CASES Felonies are serious crimes with a possible punishment of over one (1) year in prison. Due to the seriousness of the offenses, the proceedings involve several court appearances in both the magistrate/metropolitan (metro) court and district court. NMSA 1978, A. The process begins with the filing of a complaint in magistrate (metro) court or with a grand jury indictment which is filed directly in district court. If the person is indicted, the court appearances in magistrate (metro) court are eliminated. In an initial appearance before the magistrate (metro) court, the defendant is advised of his/her rights and his/her right to the appointment of counsel. The initial appearance must occur within forty-eight (48) hours after custody commences. RULE NMRA, RULE NMRA The magistrate court (metro) sets a preliminary hearing date either at the initial appearance or shortly thereafter. The hearing must be set within ten (10) days if the defendant is in custody or sixty (60) days if the defendant is not in custody. RULE NMRA, RULE NMRA For felony cases, preliminary hearings are held in magistrate (metro) court to determine whether a crime has been committed and whether there is cause to believe the defendant committed the crime. At the preliminary hearing, the judge hears testimony and considers the case record to make a finding. The judge then will either order the defendant bound over to district court where the district attorney will file a criminal information or the judge will dismiss the case. The basic steps in the felony process in district court are outlined in the following section. Definitions: CAUTION COMPLAINT, INFORMATION, & INDICTMENT Please note the following definitions are pursuant to Rule NMRA. Criminal Procedures 1

3 Complaint RULE B. NMRA A complaint is a sworn written statement of the facts, the common name of the offense and a specific section number of New Mexico Statutes which defines the offense. Complaints shall be substantially in the form approved by the court administrator. Information RULE C. NMRA An information is a written statement, signed by the district attorney, containing the essential facts, common name of the offense and a specific section number of the New Mexico Statutes which defines the offense. An information may be filed only in the district court. Informations shall be substantially in the form approved by the court administrator, and shall state the names of all witnesses upon whose testimony the information is based. Indictment RULE D. NMRA An indictment is a written statement returned by a grand jury containing the essential facts constituting the offense, common name of the offense and a specific section number of the New Mexico Statutes which defines the offense. All indictments shall be signed by the foreman of the grand jury. Indictments shall be substantially in the form prescribed by the court administrator. The names of all witnesses upon whose testimony an indictment is based shall appear on the indictment. Misdemeanor NMSA 1978, B.-C. A crime is a misdemeanor if it is so designated by law or if upon conviction thereof a sentence of imprisonment in excess of six months but less than one year is authorized. A crime is a petty misdemeanor if it is so designated by law or if upon conviction thereof a sentence of imprisonment for six months or less is authorized. Criminal Procedures 2

6 Grand Jury-Dismissed Proceedings may result in a No Bill. There was insufficient evidence to charge target with a crime. Grand Jury Indictment Proceedings may result in a True Bill. True Bill District Attorney files indictment with District Court. Clerk assigns a case number to indictment on defendant. Case management application randomly assigns judge to the case. Bench Warrant/Summons/ Notice Issued Defendant is set for arraignment after arrest. Defendant notified to appear for arraignment. Arraignment Charges are read to defendant. Defendant answers to the charges by entering a plea. Conditions of release are addressed. Guilty Plea Plea hearing is scheduled. Plea and Disposition Agreement may be entered. Defendant enters a plea of Guilty or No Contest to some or all of the charges. Trial The defendant is found guilty on some or all of the charges, The judge dismisses the case, or The defendant is acquitted of the charges, or The judge declares a mistrial. (The case can be retried at a later date.) Sentencing Closing Case Appeal The defendant is sentenced in cases resulting in convictions. Closing document filed and copies forwarded to the following as per in-house procedure: County Clerk s Office, Voter Registration Department, Sex Offender Unit of Sheriff s Office, County Detention Center, Department of Corrections (Grants or Los Lunas), Probation Office, and Defense Attorney Case is closed and may be reopened for cause. Time to appeal commences upon filing of final order or judgment. TIME LIMIT APPEAL, RULE NMRA A notice of appeal shall be filed... within thirty (30) days after the judgment or order appealed from is filed in the district court clerk's office. Criminal Procedures: Criminal Flowchart (District Court) 5

8 CLERICAL DUTIES 8. Close case. Use Sentencing by Count screen to dispose of counts. - See CRIMINAL SENTENCING. Review cases for motor vehicle code violations NMSA 1978, 32A-2-29, NMSA 1978, , NMSA 1978, If you encounter anything else, refer to your in-house procedure. 9. Reopened cases. Verify that this case has a closing event. 10. A case can be reopened for cause, by motion, for a probation violation, and by mandate. Some districts include new counts in the probation violation and add them to the existing petition. Other districts file new counts as a new case. Please follow in-house procedure. Section 1-4: General Rule of Pleadings RULE NMRA Form Adoption by reference Every pleading shall contain a caption setting forth the name of the court, the title of the action, the file number and a designation as to the type of pleading. Statements made in one part of a pleading may be adopted by reference in another part of the same pleading. Name of defendant In any pleading, the name of the defendant, if known, shall be stated. If the name of the defendant is not known, he may be described by any name or description by which he can be identified with reasonable certainty. Joinder of defendants No complaint, information or indictment may charge more than one defendant. Defendants may be joined for trial pursuant to RULE NMRA. Criminal Procedures: General Rule of Pleadings 7

9 Section 1-5: Protection of Records NMSA 1978, CAUTION DOB AND SOCIAL SECURITY NUMBER In order to differentiate people with the same name, verify that the pleadings include the defendant s date of birth and social security number. CLERICAL DUTIES SEALED DOCUMENTS Follow in-house procedure regarding sealed documents. Section 1-6: Methods Of Prosecution RULE 5-201, NMRA Commencement of Prosecution A prosecution may be commenced by the filing of: A complaint, An information, or An indictment. TIME LIMIT INFORMATION, RULE 5-201, NMRA An information shall be filed within thirty (30) days after completion of a preliminary examination or waiver unless time is extended by the court upon motion of the district attorney. CAUTION COMPLAINTS NOT FILED BY DA If not approved by the district attorney, bring to a judge s attention for further instructions on filing. If approved, a filing fee is required. RULE NMRA Criminal Procedures: Protection of Records 8

10 Section 1-7: Rules and Statutes Regarding Defendants Notice of Right to Representation NMSA 1978, Determination Of Indigency NMSA 1978, Waiver Of Right To Representation NMSA 1978, Recovery From Defendant NMSA 1978, Payment Of Costs, Expenses And Attorney Fees NMSA 1978, Section 1-8: Filing of Information or Grand Jury Indictment Information or Grand Jury Indictment After probable cause is found, the prosecutor files an "Information" in district court or a grand jury indictment may be filed. Some changes may result due to findings at the preliminary hearing. A separate complaint, indictment or information shall be filed for each defendant. Two or more defendants may be joined on motion of a party, or will be joined by the filing of a statement of joinder by the state contemporaneously with the filing of the complaints, indictments or informations charging such defendants. RULE NMRA Criminal Procedures: Rules and Statutes Regarding Defendants 9

11 CLERICAL DUTIES COMPLAINT, INDICTMENT OR INFORMATION 1. Verify that criminal complaint, information or indictment is properly signed and filed at the appropriate court. 2. Follow case management application (FACTS ) procedure or case initiation. 3. File stamp pleading. 4. Follow in-house procedure regarding distribution of documents. 5. Upon request, issue summons to appear, notice to appear or warrant in accordance with in-house procedure. CAUTION SERVICE OF CRIMINAL SUMMONS, RULE NMRA Service shall be made at least ten (10) days before the defendant is required to appear. 6. Follow in-house procedure regarding scheduling of arraignment date. 7. Follow case management procedure for Entering a Case and Docketing. 8. Follow in-house procedure regarding index in docket book and on master index cards. 9. Place pleadings in pre-numbered case file and file numerically in proper place. 10. Upon filing of bindover, record or tape of preliminary hearing shall be filed within ten (10) days of request. RULE B. NMRA 11. File tapes where you can easily retrieve them, but separate from the court file. Make a copy on request. Grand Jury tapes may require a court order as per in-house policy. CAUTION NO ORIGINAL TAPES Do not check out original tapes. Make a copy on request. Criminal Procedures: Filing of Information or Grand Jury Indictment 10

12 Section 1-9: Issuance and Service of Warrant RULE NMRA Time Upon the docketing of any criminal action, the court may issue a summons or arrest warrant. Form of Warrant The warrant shall be signed by the court and shall contain the name of the defendant or, if his name is unknown, any name or description by which he can be identified with reasonable certainty. It shall describe the offense charged. It shall command that the defendant be arrested and brought before the court. Form of Summons The summons shall be in the same form as the warrant except that it shall summon the defendant to appear before the court at a stated time and place. A summons or arrest warrant shall be substantially in the form approved by the court administrator. Basis for Warrant The court may issue a warrant for arrest upon an indictment or a sworn written statement of the facts showing probable cause for issuance of a warrant. The showing of probable cause shall be based upon substantial evidence, which may be hearsay in whole or in part, provided there is a substantial basis for believing the source of the hearsay to be credible and for believing that there is a factual basis for the information furnished. Before ruling on a request for a warrant, the court may require the affiant to appear personally and may examine under oath the affiant and any witnesses he may produce, provided that such additional evidence shall be reduced to writing and supported by oath or affirmation. Criminal Procedures: Issuance and Service of Warrant 11

13 Section 1-10: Service SERVICE OF SUMMONS RULE NMRA Service A summons shall be served in accordance with the rules governing service of process in civil actions unless the court directs service by mail. A copy of the complaint, indictment or information shall be attached to the summons. Service by mail is complete upon mailing. TIME LIMIT SERVICE OF A CRIMINAL SUMMONS, RULE NMRA Service shall be made at least ten (10) days before the defendant is required to appear. Failure to Appear If a defendant fails to appear in person, or by counsel when permitted by these rules, at the time and place specified in the summons, the court may issue a warrant for the defendant's arrest, and thereafter the action shall be treated as if the warrant had been the first process in the action. Section 1-11: Arraignment in District Court At the district court arraignment, the defendant is read the charges and enters a plea. The defendant may waive arraignment with permission of the court by filing a plea of not guilty prior to or at the time set for arraignment. RULE H. NMRA The court may also set dates for other hearings (motions, pre-trial, trial). The court reviews the bond and may set it. Criminal Procedures: Service 12

14 TIME LIMIT ARRAIGNMENT, RULE NMRA Arraignment to be held within fifteen (15) days of filing or arrest, whichever is later. CLERICAL DUTIES ARRAIGNMENT Follow in-house procedure regarding arraignments. Section 1-12: Time Limits RULE NMRA TIME LIMIT ARRAIGNMENT, RULE NMRA The defendant shall be arraigned on the information or indictment within fifteen (15) days after the date of the filing of the information or indictment or the date of arrest, whichever is later. Criminal Procedures: Time Limits 13

15 TIME LIMIT COMMENCEMENT OF TRIAL, RULE NMRA B. The trial of a criminal case, or an habitual criminal proceeding shall be commenced six (6) months after whichever of the following events occurs latest: The date of arraignment, or waiver of arraignment, in the district court of any defendant; If the proceedings have been stayed to determine the competency of the defendant to stand trial, the date an order is filed finding the defendant competent to stand trial; If a mistrial is declared or a new trial is ordered by the trial court, the date such order is filed; In the event of an appeal, including interlocutory appeals, the date the mandate or order is filed in the district court disposing of the appeal; If the defendant is arrested or surrenders in this state for failure to appear, the date of arrest or surrender of the defendant; If the defendant is arrested or surrenders in another state or country for failure to appear, the date the defendant is returned to this state; If the defendant has been placed in a preprosecution diversion program, the date of the filing with the clerk of the district court of a notice of termination of a preprosecution diversion program for failure to comply with the terms, conditions or requirements of such program; The date the court allows the withdrawal of a plea or the rejection of a plea made pursuant to Paragraphs A to F of Rule NMRA. TIME LIMIT DISTRICT COURT EXTENSION, RULE C. NMRA For good cause shown, the time for commencement of trial may be extended by the trial judge provided that the aggregate of all extensions granted by the trial judge may not exceed three (3) months. TIME LIMIT SUPREME COURT EXTENSION, RULE D. NMRA For good cause shown, the time for commencement of trial may be extended by the Supreme Court or a justice thereof. Criminal Procedures: Time Limits 14

16 TIME LIMIT PROCEDURE FOR EXTENSION, RULE E. NMRA The party seeking an extension of time shall file with the clerk of the court a verified petition for extension concisely stating the facts petitioner deems to constitute good cause for an extension of time to commence the trial. The petition shall be filed within the applicable time limits prescribed by this rule, except that it may be filed within ten (10) days after the expiration of the applicable time limits if it is based on exceptional circumstances beyond the control of the state or trial court which justify the failure to file the petition within the applicable time limits. A party seeking an extension of time shall forthwith serve a copy thereof on opposing counsel. Within five (5) days after service of the petition, opposing counsel may file an objection to the extension setting forth the reasons for such objection. No hearing shall be held except upon order of the court. If the court finds that there is good cause for the granting of an extension beyond the applicable time limit, it shall fix the time limit within which the trial must commence. TIME LIMIT NONCOMPLIANCE WITH TIME LIMITS, RULE F. NMRA In the event the trial of any person does not commence within the time specified in Paragraph B of Rule NMRA or within the period of any extension granted as provided in this rule, the information or indictment filed against such person shall be dismissed with prejudice. TIME LIMIT APPLICABILITY, RULE NMRA This rule shall not apply to cases appealed from the metropolitan, magistrate or municipal court. Criminal Procedures: Time Limits 15

17 Section 1-13: Habitual Offender NMSA 1978, Duty of District Attorney If at any time, either after sentence or conviction, it appears that a person convicted of a noncapital felony is or may be a habitual offender, it is the duty of the district attorney of the district in which the present conviction was obtained to file an information charging that person as a habitual offender. Section 1-14: Events Following Trial or Other Disposition TIME LIMIT JUDGMENT, RULE C. NMRA Within thirty (30) days after the conclusion of the sentencing hearing, the court shall enter a judgment and sentence. Criminal Procedures: Habitual Offender 16

18 Restitution In every case wherein there is a conviction, the costs may be adjudged against the defendant. NMSA 1978, The defendant may be required to make restitution to his/her victims pursuant to NMSA 1978, The defendant upon conviction shall be required to reimburse the amount of any reward paid by an agency or program for information leading to his/her arrest. NMSA 1978, The defendant upon conviction shall be required to pay the actual costs of his/her probation service to the Corrections Department. Cost payments not exceeding $1,020 annually may be paid in monthly installments and can be modified with court approval on the basis of changed financial circumstances. NMSA 1978, INSTALLMENT PAYMENTS OF FINES AND FEES NMSA 1978, Paying fines and/or costs in installments. Any person sentenced to pay a fine or to pay fees and costs in any criminal proceeding against him, either in addition to or without a term of imprisonment, may in the discretion of the court be allowed to pay such fine, fees or costs in installments of such amounts, at such times and upon such conditions as the court may fix. The defendant may also be required to serve a period of time in labor to be known as "community service" in lieu of all or part of the fine. If unable to pay the fees or costs, he may be granted permission to perform community service in lieu of them as well. Unless otherwise provided, however, the total fine, fees and costs shall be payable forthwith. Criminal Procedures: Events Following Trial or Other Disposition 17

19 Modification of Terms The court may at any time revise, modify, reduce or enlarge the amount of the installment or the time and conditions fixed for payment of it. Default of Payment When a defendant sentenced to pay a fine in installments or ordered to pay fees or costs defaults in payment, the court, upon motion of the prosecutor or upon its own motion, may require the defendant to show cause why his default should not be treated as contumacious and may issue a summons or a warrant of arrest for his appearance. It shall be a defense that the defendant did not willfully refuse to obey the order of the court or that he made a good faith effort to obtain the funds required for the payment. If the defendant's default was contumacious, the court may order him committed until the fine or a specified part of it or the fees or costs are paid. The maximum term of imprisonment for such contumacious nonpayment shall be specified in the order of commitment. Extension of the Payment Period If it appears that a defendant's default in the payment of a fine, fees or costs is not contumacious, the court may allow the defendant additional time for payment, reduce the amount of the fine or of each installment, revoke the fine or the unpaid portion in whole or in part or require the defendant to perform community service in lieu of the fine, fees or costs. Criminal Procedures: Events Following Trial or Other Disposition 18

20 RESTITUTION Victim restitution. NMSA 1978, B. Plan of Restitution NMSA 1978, C. Mail Plan to Victim NMSA 1978, E. Courts may require as a condition of probation or parole that the defendant in cooperation with a parole officer promptly prepare a plan of restitution, including a specific amount of restitution to each victim and a schedule of payment. Defendant's plan of restitution and the recommendations of his/her probation or parole officer shall be submitted to the court. The court shall promptly enter an order approving, disapproving or modifying the plan. The clerk of the court shall mail to each known victim a copy of the court's order approving or modifying the plan of restitution, including the court's statement, if any. MOTOR VEHICLE DEPARTMENT NMSA 1978, Record of Conviction Upon a conviction for the offense of shooting at or from a motor vehicle pursuant to Subsection B of Section NMSA 1978, or of a conviction for a conspiracy or attempt to commit that offense, the district court shall send a record of the conviction to the motor vehicle division of the taxation and revenue department. The division shall immediately revoke the driver's licenses or driving privileges of all persons convicted of the offense of shooting at or from a motor vehicle, or convicted of conspiring or attempting to commit that offense, pursuant to the provisions of Subsection E of Section NMSA Criminal Procedures: Events Following Trial or Other Disposition 19

21 NMSA 1978, Record of Traffic Cases Every trial court judge shall keep a record of every traffic complaint, uniform traffic citation and other form of traffic charge filed in the judge's court or its traffic violations bureau and every official action and disposition of the charge by that court. TIME LIMIT ABSTRACTS, Within ten (10) days of the later of entry of judgment and sentence or failure to appear on a charge of violating the Motor Vehicle Code or other law or ordinance relating to motor vehicles or the final decision of any higher court that reviews the matter and from which no appeal or review is successfully taken, every trial court judge, including children's court judges, or the clerk of the court in which the entry of judgment and sentence or failure to appear occurred shall prepare and forward to the department an abstract of the record containing: the name and address of the defendant; the specific section number and common name of the provision of the NMSA 1978 or local law, ordinance or regulation under which the defendant was tried; the plea, finding of the court and disposition of the charge, including fine or jail sentence or both, forfeiture of bail or dismissal of the charge; an itemization of costs assessed to the defendant; the date of the hearing; the court's name and address; whether the defendant was a first or subsequent offender; and whether the defendant was represented by counsel or waived his right to counsel and, if represented, the name and address of counsel. Criminal Procedures: Events Following Trial or Other Disposition 20

22 The abstract of record prepared and forwarded under Subsection B of this section shall be certified as correct by the person required to prepare it. With the prior approval of the department, the information required by Subsection B of this section may be transmitted electronically to the department. Report need not be made of any disposition of a charge of illegal parking or standing of a vehicle except when the uniform traffic citation is used. When the uniform traffic citation is used, the court shall provide the information required by Subsection B of this section in the manner prescribed by the department. The failure or refusal of any judicial officer to comply with this section is misconduct in office and grounds for removal. TIME LIMIT ABSTRACTS Every court of record shall also forward a like report to the department upon conviction of any person of any felony if a motor vehicle was used in the commission. With the prior approval of the department, the information required by this subsection may be submitted electronically to the department. The report shall be forwarded to the department within ten (10) days of the final decision of the court or of any higher court that reviews the matter and from which the decision of no appeal or review is successfully taken. CAUTION ABSTRACTS Clerk should prepare, docket and file a certificate of mailing or certificate of transmission if electronically submitted. Criminal Procedures: Events Following Trial or Other Disposition 21

23 Motor Vehicle Department Every court of record shall also forward a like report to the department upon conviction of any person of any felony if a motor vehicle was used in the commission. With the prior approval of the department, the information required by this subsection may be submitted electronically to the department. TIME LIMIT REPORT, NMSA 1978, E. The report shall be forwarded to the department within ten (10) days of the final decision of the court or of any higher court that reviews the matter and from which the decision of no appeal or review is successfully taken. Criminal Procedures: Events Following Trial or Other Disposition 22

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